Are Prenuptial Agreements Enforceable in Manitoba?

If you are engaged or newly married, you may be wondering whether a prenuptial agreement would actually hold up if the marriage ended. In Manitoba, The Family Property Act expressly recognizes agreements between spouses, but how well a particular agreement holds up depends on how it was made and what it says.

This article explains what an agreement can do, where its limits are, and what to think about before you sign. It is general information and not a substitute for advice on your own document.

This article covers the law of Manitoba.

What the law allows

The Family Property Act says it does not apply to an asset disposed of by a spousal agreement or common-law relationship agreement, or made inapplicable by its terms. Agreements can also make a provision of the Act inapplicable or vary how it applies.

That means a well-made agreement can change the default rules, which otherwise divide combined value into two equal shares. Common-law partners can make agreements too, since the Act refers to common-law relationship agreements.

The limits of an agreement

• Assets the agreement does not address remain subject to the Act. A vague or incomplete agreement may leave gaps.
• A written release of support is not always final. The court generally cannot order support for a spouse who released the other or accepted a set amount in a written agreement, but there are exceptions: default under the agreement, support that was inadequate when the agreement was made, or the releasing spouse now needing public assistance.
• Agreements are not court orders and can be harder to enforce.

If the marriage ends in divorce, the Divorce Act also lets a court consider any order, agreement or arrangement on support when deciding spousal support. So an agreement matters, but it is one factor among others in that setting.

What helps an agreement hold up

Manitoba guidance on separation agreements stresses that both parties should have independent legal advice, because the agreement is a binding contract. A court is unlikely to interfere with a bad bargain, but it may set an agreement aside where fraud or unfair pressure is shown. That guidance is about separation agreements, but the same practical ideas are worth applying to a prenuptial agreement.

The specific formalities for a valid spousal agreement, such as writing, signing, witnessing and disclosure of finances, and the exact grounds for setting one aside, should be confirmed with a lawyer in Manitoba rather than assumed. Do not rely on general rules of thumb from other provinces.

• Each of you gets your own lawyer.
• Put everything in writing and keep signed copies.
• Share complete information about your assets, debts and income.
• Allow plenty of time before the wedding so nobody feels rushed or pressured.
• Say clearly which assets are covered and what happens to them.
• Review the agreement when your circumstances change.

Fairness, timing and pressure

Because courts are unlikely to interfere with a bad bargain on its own, fairness is best built in at the start rather than hoped for later. Whether an agreement signed in a rush shortly before a wedding could be challenged depends on its facts and on the grounds that apply to that type of agreement, so it is worth confirming with a lawyer. How a court would view a particular agreement depends on its facts.

Also remember the family home. The Homesteads Act requires written consent in the prescribed form before an owner disposes of the homestead, and a spouse may release rights in the prescribed form for valuable consideration. After such a release, the land ceases to be that spouse's homestead. These rights exist whether or not the non-owner spouse is on title. How the homestead rules fit with a particular agreement depends on your situation, so it is worth confirming with a lawyer.

What to do next

Start early. Talk with your partner, list what each of you owns and owes, and decide what you want the agreement to do. Then each meet with a lawyer who can explain how The Family Property Act applies and whether the draft is clear and complete.

If you are already married and wondering about an agreement, or if you already have one and a separation is looming, bring the document to a lawyer. Remember that property claims have time limits, which can be as short as 60 days after a divorce takes effect.

Frequently asked questions